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Published September 23 2009

Appeals court affirms Rodriguez's death sentence

The pending execution of convicted killer and rapist Alfonso Rodriguez Jr. was upheld Tuesday by a 2-1 court ruling that affirmed his death sentence but could give more weight to further appeals.

Prosecutors and the family of Dru Sjodin – the University of North Dakota student abducted, raped and killed by Rodriguez in 2003 – welcomed the opinion from the 8th U.S. Circuit Court of Appeals, which came on the same date the death sentence was handed down in 2006.

“Alfonso Rodriguez is in exactly the place that he earned: death row in Terre Haute, Ind., as the result of his crimes across three decades culminating in his vicious crimes against Dru Sjodin,” said Drew Wrigley, the former U.S. attorney for North Dakota who led the prosecution team.

Richard Ney, an attorney for Rodriguez, said Judge Michael Melloy’s dissenting opinion on the sentencing portion of the appeal should bolster the defense’s plans to ask all 11 of the judges in the 8th Circuit to rehear the arguments made in front of a panel of three judges in February.

Having even one judge say that Rodriguez didn’t get a fair shake is significant, Ney said.

“That should be disturbing to us,” Ney said. “Out of three astute judicial minds, one of them says Mr. Rodriguez got an unfair trial. I would think that would be troubling to the prosecution.”

Wrigley discounted the importance of Melloy’s dissenting opinion.

“Make no mistake about it, the case has been upheld,” he said at a news conference. “This is not uncommon at all to have dissents in decisions. It happens regularly.”

Ney said he’s unaware of any recent split opinions in death penalty cases in the 8th Circuit.

The interim replacement for Wrigley, Lynn Jordheim, acting U.S. attorney for North Dakota, said an affirmation is all prosecutors were after.

“This is what we hoped for,” Jordheim said.

It’s also what the Sjodin family was hoping for. Linda Walker, the mother of the 22-year-old victim, gave prosecutors credit for the conviction and sentencing of Rodriguez.

“This latest success is because of them. We’re very grateful as a family,” Walker said.

At the time he abducted Sjodin, Rodriguez, now 56, had only been out of prison for six months after serving a 23-year prison sentence for kidnapping, assault and rape. Though he was considered a high risk to reoffend, a civil commitment was not sought by the state.

“This is another reason why we should not let these predators out to reoffend time and time again,” Walker said.

On many of the 20 issues raised in the appeal, the panel unanimously sided with the government. The judges together rejected the defense’s arguments about trial venue, jury selection and composition, evidence allowed to be admitted, jury instructions, the constitutionality of the death penalty and other issues.

But Melloy agreed government lawyers shouldn’t have told jurors that the death penalty was required to punish Rodriguez for the murder because a life term would only punish the kidnapping. He also agreed prosecutors acted improperly by appealing to jurors’ fears and prejudices and denigrating defense attorneys as trying “to sell” a story to the jury.

“I would hold these statements to be improper because they ‘encourage the jury to focus on the conduct and role’ of the defense team rather than the evidence, and because the inflammatory nature of the statements was designed to anger the jury through general denigration of the defense,” he wrote.

Melloy argued the errors were serious enough that the case should return to the penalty portion of the two-part trial.

Wrigley admitted at the news conference he would change some statements he made in the trial, including the “sell” comment.

“Yeah, I guess I’d leave out the word ‘sell,’ ” he said.

Ney said the comments that Melloy agreed were inflammatory were some of the strongest elements of the defense’s appeal, strong enough that it was one of the handful of points covered in the 30 minutes they had for oral arguments.

However, he said the characterization of a life sentence as only being punishment for the kidnapping was just as strong.

“It’s not just one word,” he said. “That was a clear violation of our client’s rights.”

The defense has 14 days to ask for a rehearing by a full panel of the 8th Circuit, though Ney said an extension will likely be granted. A majority of the judges would have to agree to hear the case again.

Ney said the defense has not decided whether it will ask for a rehearing only on the issues in Melloy’s dissent or all the 20 concerns included in the appeal.


The Associated Press contributed to this report

Readers can reach Forum reporter Dave Roepke at (701) 241-5535